CITATION: R. v. W.V., 2016 ONSC 874
COURT FILE NO.: 751/15
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
W.V.
Respondent
Philip Zylberberg, for Her Majesty the Queen.
Renée E. M. Gregor, for the Respondent.
HEARD: January 11, 2016
Restriction on Publication
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code.
r. d. gordon, r.s.j.
Overview
[1] The Crown has applied for an order allowing two persons under the age of 18 to give their evidence from outside the courtroom pursuant to section 486.2(1) of the Criminal Code.
Background
[2] W.V. is to stand trial on sexual assault and sexual interference charges involving B.G., who is currently 16 years of age. The allegations date back to the years 2008 to 2014 when Mr. W.V. was the common-law partner of B.G.’s mother. B.G. and her sister (who is 13 years of age) will be called to give evidence at the trial.
[3] Although defence counsel would consent to an order that they testify inside the courtroom with the benefit of a screen, she objects to the use of remote video technology that would allow them to testify from a location outside the courtroom.
[4] In essence, the parties disagree on the proper interpretation of section 486.2(1) which provides that in any proceedings a judge shall, on application of the prosecutor, order that a witness under the age of 18 years testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused, unless he or she is of the opinion that the order sought would interfere with the proper administration of justice.
[5] There are three significant points of disagreement between counsel in this matter:
Whether or not there is discretion in the court to order something other than what is specifically requested by the Crown absent evidence that the order requested would interfere with the proper administration of justice.
What constitutes interference with the proper administration of justice?
What should be the basis for the court’s ruling?
Analysis
Is There Discretion Absent Evidence of Interference with the Proper Administration of Justice?
[6] There have been divergent opinions on this issue from courts across Canada.
[7] The view that no discretion rests with the presiding judge was succinctly stated by Smart J., of the British Columbia Supreme Court in the matter of R. v. T. (S.B.) 2008 BCSC 71. He held that it is the applicant who determines which testimonial accommodation is to be presumptively ordered. He found this interpretation to be consistent with the wording of the subsection and the purpose underlying the changes to these provisions, namely that a hearing into the issue is no longer required and that the onus is no longer on the applicant to demonstrate a need for the requested accommodation.
[8] The view that discretion continues to rest with the presiding judge was succinctly stated by Martin J., of the Manitoba Court of Queen’s Bench in the matter of R. v. C.T.L. [2009] MBQB 266. He determined that the existence of such a discretion is consistent with the court’s inherent jurisdiction to manage the trial and that the subsection is not sufficiently precise and unambiguous to derogate from that inherent jurisdiction. Justice R. A. Humphrey of the Ontario Court of Justice made a well-reasoned finding to the same effect at the preliminary hearing involving Mr. W.V. when he held as follows:
The Court concludes by reason of the foregoing, that the Court does have the authority to choose the appropriate accommodation. This strikes a balance between the competing interests of the accused and the statutorily presumed susceptibility of a young complainant. As this Court has said before, to conclude otherwise, would be an abdication of the Court’s overriding authority to control the trial process. It would amount to a delegation of control of part of the trial process, solely to the Crown within the context of an adversarial proceeding, and a derogation from the long-standing principle that where possible, an accused be allowed to face his accuser within the setting of a courtroom.
[9] I have been provided with a host of other decisions from various judges in various provinces and territories agreeing with one or the other of these positions.
[10] For the reasons which follow, it is my view that the presiding judge must rule on the application which is before him or her and does not have the discretion to consider means of testimonial accommodation other than that requested by the moving party absent evidence of interference with the proper administration of justice.
[11] The interpretation of section 486.2(1) must be considered in the context of the legislative intent behind its enactment. This subsection was enacted in 2005 as part of Bill C-2. Prior to its enactment, section 486(2.1) of the Code provided that where an accused was charged with certain enumerated offences and the complainant or any witness, at the time of trial or preliminary inquiry was under the age of eighteen years, the presiding judge may order that the complainant or witness testify outside the courtroom or behind a screen or other device that would allow the complainant or witness not to see the accused, if the judge was of the opinion that the exclusion was necessary to obtain a full and candid account of the acts complained of (emphasis added).
[12] There are several significant differences between the predecessor section and the current provision, including the following:
The predecessor section did not specifically anticipate an application by the prosecutor or witness and simply gave the court discretion to make the order. The current section requires an application for relief. It is for the applicant to decide what relief is requested.
The predecessor section required a finding that the granting of relief was necessary to obtain a full and candid account of the acts complained of and therefore required an evidentiary basis for such a finding. The current section does away with that inquiry and requires no evidentiary basis for the application other than the age of the witness and the availability of the relief requested. That the requested relief is necessary is presumed.
Under the predecessor section, even if there was finding that relief was necessary to obtain a full and candid account of the acts complained of, the court retained discretion to deny the use of a testimonial accommodation. The current provision is mandatory unless to grant the relief would interfere with the proper administration of justice.
[13] These fundamental changes from the predecessor subsection clearly indicate that the legislative intent of the amendment was to make it easier for children and youthful witnesses to testify. This is confirmed by the preamble to Bill C-2, which states in part as follows: “WHEREAS the Parliament of Canada wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children…”. Furthermore, various briefs and papers prepared with respect to Bill C-2 confirm that it proposes a variety of procedural reforms intended to facilitate testimony by young persons and broaden the courts’ ability to accommodate the needs of children and other vulnerable witnesses [see Bill C-2: An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, prepared by Robin MacKay, Law and Government Division, revised June 16, 2005; Brief on C-2: Recognizing the Capacities and Need of Children as Witnesses in Canada’s Criminal Justice System, presented to Child Witness Project to House of Commons Committee on Justice, Human Rights, Public Safety & Emergency Preparedness, March 24, 2005; Bala et al, Bill C-2: A New Law for Canada’s Child Witnesses, (2006) 32 C.R. (6th) 48].
[14] Particularly significant, in my view, is the different treatment accorded a request for accommodation by a child or person who may have difficulty communicating by reason of mental or physical disability under section 486.2(1) and others who may apply under section 486.2(2). Under 486.2(1) it is mandatory that an order be granted with no inquiry as to the age of the witness (other than to establish he or she is under the age of 18), the witness’s mental or physical disabilities, the nature of the offence, the nature of the relationship between the witness and the accused, whether the witness needs the order for their security or to protect them from intimidation or retaliation, society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process.
[15] This stands in contrast to section 486.2(2) in which consideration of these very factors is required of a judge who is considering an application for testimonial accommodation by other persons, and who has discretion to order the requested relief only if he or she is of the opinion that the order is necessary to obtain a full and candid account from the witness of the act complained of.
[16] For children, it is presumed that the order is necessary to obtain a full and candid account of their evidence. There is to be no analysis, as under section 486.2(2), of the extent to which a requested accommodation is required. If there is to be no such analysis it is difficult to understand how a judge could properly undertake a balancing of the child’s request for accommodation with the competing interests of the accused.
[17] The conclusion I reach is that no such balancing is to take place. The only consideration for the judge under section 486.2(1) is whether the requested accommodation interferes with the proper administration of justice.
[18] This interpretation does not derogate from the inherent jurisdiction of the court to control its process. The court’s inherent jurisdiction exists to prevent abuse of the court’s process and to ensure fairness in the trial proceeding [see R. v. Rose 1998 CanLII 768 (SCC), [1998] 3 SCR 262]. In essence, it exists to prevent interference with the proper administration of justice. Since discretion remains to deny requested accommodation on this basis, there is, in fact, no derogation.
What Constitutes Interference with the Proper Administration of Justice?
[19] In the context of criminal proceedings, the administration of justice is the process by which an accused person is investigated, charged and tried. At issue in this case is the trial process.
[20] As I have already stated, the proper administration of justice includes ensuring fairness in the trial process. However, in my view it also goes beyond that.
[21] The administration of criminal proceedings in the Superior Court is governed, in part, by The Criminal Proceedings Rules for the Superior Court of Justice (Ontario). Those rules require that proceedings be conducted in a manner which, in addition to providing fairness to the accused and a just disposition, eliminates unjustifiable expense and delay [see s. 1.04].
[22] The administration of criminal proceedings in the Ontario Court of Justice is governed, in part, by the Criminal Rules of the Ontario Court of Justice. Those rules require that proceedings in that court be conducted justly and efficiently with an eye to fairness, the rights of the accused, the interests of witnesses, the gravity of the offence, the complexity of what is in issue, the severity of the consequences for the accused and others affected, and the requirements of other proceedings [see s. 1.1].
[23] In brief, the proper administration of justice in the context of the trial process requires that trials be scheduled and conducted fairly and efficiently.
What Should be the Basis for the Court’s Ruling?
[24] It follows that whether or not a proposed accommodation interferes with the proper administration of justice requires an examination of whether the accommodation would interfere with the fair and efficient scheduling and conduct of the trial.
[25] It is worth noting that every accommodation is going to cause some degree of interference with the efficient conduct of the trial. The inquiry for the court in that context is whether the interference is unacceptable in the circumstances.
Application to This Case
[26] I am not persuaded that the proposed accommodation would interfere with the fair or efficient scheduling of this trial. The Crown has brought this application well in advance of trial and has confirmed that the proposed accommodation is available for the scheduled dates.
[27] Defence Counsel urged me to find that allowing the witnesses to testify by video link from another location would interfere significantly with the fair and efficient conduct of the trial. She submitted that the process would be unfair because: (1) The witnesses’ absence from the court room would keep them from appreciating the seriousness of the proceedings; (2) The witnesses cannot always be in view of the video camera (e.g. when the camera is zooming in on a document) with the result that the judge may not be able to see telling expressions or body language of the witnesses or their communication with their support person; (3) It prevents the accused from being able to face his accuser; and (4) It prevents the witnesses from seeing the accused.
[28] I would not give effect to any of these arguments.
[29] There was no evidence led to establish that witnesses testifying by way of video link appreciate the nature of the proceedings any less. As with any other witnesses, they will be required to swear or affirm an oath, they will hear the voice of the judge and may be required to face him or her if questioned. They will be confronted and questioned by crown counsel and counsel for the accused. I have little doubt that the gravity of the situation will be readily apparent to all involved.
[30] Although it is true that the witness may not always be in the frame of the video, this may be adequately addressed by allowing counsel to be present with the witness for questioning and to report to the court on any gestures or communications that are thought to be inappropriate.
[31] The accused will be well able to face his accuser. The complainant will be giving her testimony in open view of the accused. As the Supreme Court of Canada determined in R. v. Levogiannis 1993 CanLII 47 (SCC), [1993] S.C.J. No. 70, even when an order is made pursuant to s. 486.(2.1) (as it then was), the requisite “elements of confrontation” remain, albeit in a limited form.
[32] Counsel’s final point would require a disingenuous interpretation of section 486.2(1). To suggest that a witness testifying from a remote location should see the accused misses the most salient reason for the section – to save children the profound distress of seeing the accused in court and reducing the effect of that stress on both the child’s emotional well-being and the quality of the child’s testimony.
[33] Defence counsel argued that the requested testimonial accommodation would affect the efficiency of the trial in the following ways: (1) Increased difficulty in handling and entering exhibits; (2) Increased difficulty in having the witnesses prepare sketches and having those sketches transmitted to the court; (3) Increased time required for trial because of these difficulties; and (4) In the event she is required to conduct her cross-examination in the presence of the witnesses, additional time will be required for her to break and obtain instructions from the accused from time to time.
[34] The proposed accommodation is for the witnesses to provide their testimony via video link from another court house in Sudbury. Much of the inefficiency raised by defence counsel can be alleviated by having the witnesses give their testimony via video link from another room in the same court house. I am advised that this can be done and that a room is available. Other inefficiencies can be reduced by having a second court clerk in the remote location to handle and transport exhibits.
Conclusion
[35] In all, I am unable to find that the relief requested would interfere with the proper administration of justice provided certain conditions are met. Accordingly, it is ordered that:
The witnesses in this trial who are under the age of eighteen years shall testify by video link from the SDL Boardroom at the Court House at 155 Elm Street, Sudbury.
Defence Counsel shall have the option of attending with the witnesses in person for their examination in chief and cross-examination. In the event she elects to do so, the Crown shall also be entitled to attend with the witnesses in person for their examination in chief and cross examination.
The court shall provide a second clerk to attend with the witnesses while they give their testimony to assist in the administration of oaths, and the entry, preservation and delivery of exhibits.
Other Relief
[36] At the outset of argument I was advised that the remaining issues scheduled for argument had been resolved as follows:
The Application by the accused for third party records is abandoned.
The Charter Application by the accused alleging a breach of his section 10(b) rights is abandoned.
The accused admits that the statement he gave was made voluntarily on the condition that the crown seeks its introduction only for the purposes of cross-examination.
The letter alleged to have been written by the accused is inadmissible.
R. D. GORDON, R. S. J.
Released: February 5, 2016
CITATION: R. v. W.V., 2016 ONSC 874
COURT FILE NO.: 751/15
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
W.V.
Respondent
decision on crown application
R. D. GORDON, R.S.J.
Released: February 5, 2016